State Ex Rel. Short v. Currie

53 N.C. 42 | N.C. | 1860

Plea: General issue.

The bond declared on was in the usual form and had a subscribing witness to it, who was not present; it was endorsed with the certificate of W. D. Dowd, chairman of Moore County Court, before which court it was taken, that the execution of it had been acknowledged in open court also, with the certificate of the register that it had been registered in his office. To prove the execution of the bond, the plaintiff introduced the clerk of the Superior Court, who stated that the paper-writing in question had been filed in his office as the official bond of the clerk of the county court; that it had been there kept, and had been taken from the file for the purposes of this trial. W. D. Dowd was then introduced, who stated that at the time of the date of the instrument he was chairman of the county court of Moore County; that the parties thereto acknowledged its execution before him in open court, and that he endorsed on it the certificate above described, signed by him as chairman.

Upon this evidence, the plaintiffs proposed to read the bond to the jury, but the defendants' counsel objected, on the ground that there was a subscribing witness to the paper, and that, therefore, the proof was insufficient.

The court sustained the objection, and the plaintiffs' counsel excepted.

The plaintiffs' counsel then offered a registered copy of the bond declared on, which was also objected to by the defendants' counsel (43) and ruled out by the court. The plaintiffs again excepted.

In deference to the opinion of the court, the plaintiffs submitted to a nonsuit, and appealed to this Court. We are clearly of the opinion that his Honor in the court below erred in rejecting the testimony offered on the part of the relators to prove the execution of the bond declared on. It being the official bond of Alexander C. Currie, as clerk of the county court of Moore, the rule of evidence, which requires the production of the subscribing witness to prove the execution of a private instrument, did not apply to it. In Kello v. Maget, 18 N.C. 414, it was held by the Court, in relation to a guardian bond, that "when a suit is brought, its execution may be denied by a plea, for it does not import absolute verity. But it is yet a document partaking of a public nature, taken by public authority, having a high character of authenticity, and it requires not that it should be verified by the ordinary tests of truth applied to merely private instruments, the obligation of an oath and the power of cross-examining witnesses on whose veracity the truth of such instruments depend. Confidence is due to it, because of the authority of the court by whom it was taken, and whom the State, in the discharge of the parental duties which it owes to orphans, has empowered to take it." This rule seems to be founded in reason and good sense, and applies with as much, if not more, force to the official bonds of clerks, Sheriffs, and other public officers, as to those of guardians. See Starkie on Evidence, 195. In coming to the conclusion that the rule thus laid down in Kellov. Maget is a sound one and ought to be followed, we have not overlooked an expression which fell from Nash, J., in delivering the opinion of the Court in Butler v. Durham, 38 N.C. 589. It was that "a guardian bond is not a record, and before it can be used as evidence in any case it must be proved, like all other instruments (44) of a similar kind, by the subscribing witness, if there be one." The point decided, and the only one necessary to be decided, was that the mere certificate of the clerk that a certain paper was the copy of a guardian bond was no proof of the fact that it was a guardian bond; for, says the judge, "we know of no law authorizing the clerk to certify a paper and thereby authenticate it under his private seal." In the case now before the Court, there was no question as to the identity of the obligors, and we think the bond ought to have been read in evidence upon the proof introduced by the relators, without requiring the production of the subscribing witness. That proof, however, was not conclusive, and it was open to the obligors to rebut it by showing that what purported to be their obligation had never in fact been executed by them.

If there were any doubt about the rule laid down in Kello v. Maget, as to the proof of official bonds at common law, there can be none that it has been established by statutory enactments. By section 9, chapter 19, Rev. Code, taken from section 8, chapter 19, Rev. Stat., it is declared that "the courts of pleas and quarter sessions shall cause all bonds taken before them of the clerks of their respective courts to be acknowledged or proved in open court, and indorse thereon a certificate of such acknowledgment or probate, which certificate shall be signed by the justice who presides in the court at the time such acknowledgment or proof is made," which bonds are then required to be deposited in the office of the clerk of the Superior Court of the respective counties. By the next two succeeding sections, it is made the duty of the clerks of the Superior Courts to have these bonds registered in the register's office of their respective counties, and then to keep the originals in the same manner as they keep the records of their office. In connection with this, section 16, chapter 37, Rev. Code, taken from acts 1846, chap. 68, sec. 1, provides "that the registry or duly certified copy of the record of any deed, power of attorney, or other instrument, required (45) or allowed to be registered or recorded, may be given in evidence in any court, and shall be held to be full and sufficient evidence of such deed, power of attorney, or other instrument, although the party offering the same shall be entitled to the possession of the original and shall not account for the nonproduction thereof." The general words of this section will certainly embrace official bonds, which are required to be proved and registered, and we have no doubt that it was intended to embrace them, because a clause in section 9, chapter 19, Rev. Stat., which said that "on the destruction or loss of the original a certified copy of the said bond shall be received in evidence," is omitted in the corresponding section and chapter of the Revised Code. It can hardly be supposed that such a statutory provision would have been omitted in one part of the Code, unless it was intended and believed to be contained in another. If, then, the certified copy of the bond in question was sufficient evidence of its execution on the trial, without other proof, of course the original, which had been proved and registered as required by the statute, could not be less so. S. v. Lewis, 10 N.C. 410.

PER CURIAM. Reversed.

Cited: Love v. Harbin, 87 N.C. 254; Battle v. Baird, 118 N.C. 860.